HIJAB BAN VS. FREEDOM OF RELIGION: A CONSTITUTIONAL OUTLOOK

Abstract

A conflict on hijab or headscarves worn by Muslim females is raised at a government pre-university college in Udupi, Karnataka. In this article, the whole background of this issue is mentioned from the scratch. Further, the article mentions the contentions of the college authorities, students, and political leaders on the question whether the fundamental rights of Muslim females are violated if the college authorities tend to ban the wearing of hijab in the classrooms. Moreover, various Quranic verses are mentioned in support of the argument that the wearing of hijab or headscarves is an essential religious practice of Islam. This article also discusses the precedents of Indian judiciary on the issue of whether or not the wearing of hijab should be allowed in an educational institution or examinations and the constitutional perspectives on the religion and the attire. The article ends with a concluding note that the Indian Constitution provides its citizens the freedom of choosing their own religion and to practice and profess the same.

BACKGROUND

The controversy of Hijab in Karnataka has been going on for more than a month, with Muslim and Hindu students staging rallies and refuting. The Hijab dispute arose in January at Government PU College in Udupi, Karnataka when six female students stated that they were not permitted to enter the classes, lectures, etc., while wearing hijab (headscarves of Muslim women). They convened a press conference, claiming that permission had been sought, but college officials would not allow them to enter the college and classes with their faces hidden.

The students took a stand, protesting against the college officials, which soon turned into a state-wide affair. Similar rallies and protests were reported across various other cities and locations in Karnataka, including Bengaluru, Mysore, Udupi, etc.

After all these controversies, a committee was formed to decide on the matter of dress code in the college. Also, the Government of Karnataka immediately issued an order under Section 133(2) of the Karnataka Education Act, 1983, stating that the students must wear the dress as selected by the Development Committee of the College or the Appellate Committee of the Administrative Board of Pre-University colleges that fall under the education department of the pre-university. Various petitions were filed in the High Court of Karnataka. Muslim students sought their right to wear hijab in the classes under Articles 14, Article 19, and Article 25 of the Constitution of India, which secure the constitutional rights and religious freedoms. Following this, the three-judge bench of the High Court of Karnataka issued an interim order putting a restriction on all the students to wear saffron shawls, saffron scarves, hijab, or any religious flag in the classes.

CONTENTIONS OF VARIOUS GROUPS

Muslim women’s Contention- The Constitution of India under Article 14 and Article 25 guarantees women the fundamental right to wear hijab and the Freedom to practise one's religion. But the college officials and administrations are forcing the Muslim students to choose between their studies and wearing hijab.

Government leaders’ Contention- Each and every student should feel and experience equality in the Universities and Colleges, which are considered sacred places for study. The students studying in the colleges or universities must follow the norms of their respective institutions regarding dress codes. The government leaders also referenced the precedents of the court where it has been held that wearing the hijab is not an integral part of the essential religious practice in Islamic culture. Apart from this, the government of Karnataka justified the ban on hijab in the classrooms under the Karnataka Education Act, 1983.

College’s Contention- The principal of Udupi College said that usually, the students used to wear the hijab to the campus and remove their scarves before they entered into their classes. There were no such norms regarding the wearing of hijab in the classes; also, no student wore the hijab in the classroom in the recent past. The outside forces sway the college students to protest and demand permission to wear hijab in classrooms.

MUSLIM WOMEN, THE RELIGION AND THE ATTIRE

‘Hijab’ is a piece of cloth or a scarf that Muslim women wear to cover their hair in public or at home to maintain modesty and privacy from unrelated males. The Islamic practice of wearing hijab by Muslim women is firmly rooted in the Islamic culture as it is mentioned in Quran as follows:

Verse 59 of Surah Al-Ahzab reads,?

“O Prophet, tell your wives and your daughters and the women of the believers to bring down over themselves of their outer garments (when abroad). That is more suitable that they will be recognized and not be abused. And ever is Allah forgiving and merciful.”

According to the historical evidence and records, veiling was not established in Arabia by the last Prophet of Islam. However, this tradition of veiling existed there and was connected with the people of higher social status.

According to the Surah 33:53 of Quran,?

“And if you were to ask the wives of the Prophet for something, ask from behind a curtain. That is more apt for the cleanliness of your hearts and theirs. It is not lawful for you to cause hurt to Allah’s messenger, nor to ever marry his wives after him. Surely that would be an enormous sin in Allah’s right.”

Wearing a hijab by Muslim women was practised to prevent harassment and unwanted sexual approaches in public and to desexualize women in the public realm, allowing them to embrace complete legal, economic and political equality.

With reference to the Surah Noor 24:31 of the holy Quran, the modest clothing is mentioned as,?

“And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment [i.e., beauty] except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess [i.e., slaves], or those male attendants having no physical desire or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.”

There is no mention of the word “hijab” in the above-mentioned Quranic injunction. However, the phrase “wrap their head covers over their chest” is mentioned. It is further questioned if wearing a hijab is the only way to cover the hair and head along with a woman’s chest.

Apart from the above-mentioned Quranic verses, the Islamic jurisprudence also required that women wear appropriate Islamic dress in public as it is considered part of Islamic etiquette. In traditional Islamic law, the dress code of women in public has been covered under the legal bifurcation of appropriate Islamic conduct, i.e., “wajib” and “adab”. Thus, most of the Islamic and jurists and scholars believed that the women who are the followers of Islam must cover their hair by wearing a hijab and leave only their faces and hands uncovered in the presence of males who are not related to them.

In the State of Karnataka, the Muslim women who filed a petition regarding the wearing of hijab in the classes submitted their contention before the three-judge bench of the High Court that the Secularism practised in India was different from that of other countries like Turkey, which had banned the wearing of hijab in public.

POSITION OF INDIAN JUDICIARY ON RELIGIOUS ATTIRE IN EDUCATIONAL INSTITUTIONS

In the landmark decision of Bijoe Emmanuel vs State of Kerala,? the Supreme Court held that it is the duty and function of the courts to protect the “fundamental right to freedom of conscience and to profess, practice and propagate religion.”

In the case of Nadha Raheem vs C.B.S.E., the uniform as per the norms of the Central Board of Secondary Education (C.B.S.E.) for sitting in the All India Pre-Medical/Pre-Dental Examination (A.I.P.M.T.) was in question. In order to appear in this examination, the Board only allowed the candidates to wear a half-sleeve kurta and salwar. Two Muslim female candidates moved to the Kerala High Court, claiming that the dress code as per the norms of C.B.S.E. is a discriminative one against them because their religious standards require them to mandatorily wear headscarves and full-sleeved clothes. The Court pointed out that in our country, where different kinds of religion with varied traditions and customs are practised, it is very difficult to impose a strict dress code or uniform, failing which a candidate would be barred from writing the exams. Therefore, the court denied issuing any blanket order; instead, he issued some directions to C.B.S.E. that the petitioners who wish to dress in a manner consistent with their religious beliefs but not in violation of the uniform/dress code as per the norms prescribed by C.B.S.E., they have to appear before the invigilator at least half an hour before the time mentioned in the admit card. Also, the examiners are authorized to examine the headscarves and the full sleeves. The Court attempted to balance the rights of Muslim female students to wear headscarves (hijab) and full-sleeves while maintaining the integrity of the examinations that C.B.S.E. tend to achieve through its dress code. But the court did not reach any conclusion about whether wearing hijab or headscarves by Muslim females is an integral part of Islam and hence safeguarded under Article 25.

Similarly, in the case of Amnah Bint Basheer vs C.B.S.E., the issue of dress code in A.I.P.M.T. examination was again challenged by a female candidate by filing a petition in the High Court of Kerala. In this case, the question considered was whether wearing the hijab by the females of the Muslim community is an essential practice of the religion under Article 25(1). The Court examined that the “Quranic injunctions and the Hadiths hold that it is a farz (obligation) to cover the head and wear the long-sleeved dress except for the face part and exposing the body otherwise is forbidden (haram)” and pointed out that the reasoning of the Board behind prescribing a dress code for the purpose of the examination was to avoid malpractices. The petition was granted while protecting the interest of the C.B.S.E. by enabling the invigilator to examine such students by unfolding their scarves.

In another case of Fathima Thasneem vs. State of Kerala, the High Court of Kerala said that wearing a headscarf or hijab is an essential practice of Islam. This is right enforceable against all state actions.

HIJAB AND THE FREEDOM OF RELIGION: A CONSTITUTIONAL PERSPECTIVE

The term “religion”, though not defined in the Indian Constitution, is implicit in our Constitution, and indeed it is a term that is hardly susceptible to any rigid definition. Religion is a matter of faith with individuals and communities, and it is not necessarily theistic. Religion is a matter of personal faith and belief.

In M. Ismail Faruqui v. Union of India, known as the Ayodhya case, the Supreme Court, after the detailed discussion, has summarised the concept of “Secularism” under the Constitution. The Supreme Court said that “the concept of Secularism is one facet of the right to equality and is woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution”.

Article 25(1), like the other constitutional rights, is not absolute. Religious liberty is subject to public order, morality and health and other provisions of Part III of the Indian Constitution. In the name of religion, no act can be done against public order, morality and health of the public.?

In Explanation 1 of Article 25, it says that the practice of Sikhs to wear and carry kirpans is recognized as a religious practice, so it is very clear that the essential religious practice is guaranteed under freedom of religion. Nevertheless, it is the weakest fundamental right of all the available fundamental rights in Part III thereof. It is weakest for the simple reason that it is subject to all other fundamental rights, in addition to claw back clauses that are part of every fundamental right in the Indian Constitution. Additionally, the State has been empowered to regulate Freedom of religion on the grounds of public order, health and morality. Thus, a state is well within its rights to regulate the Freedom of religion on the grounds mentioned above.?

CONCLUSION

When it comes to religion, India is the most diverse country. Being a secular country, it does not have its own religion, and every person has the freedom to choose, practise, propagate, and even to change their faith. The freedom of religion granted under Article 25 extends only to those activities which are the essentials of the religion and wearing hijab might be an essential practice in Islam as written in Quran. Hence, any activity which is not an essential part of religion could be prohibited by law. It is also true that social evils cannot be practised in the name of religion but at the same time the essential practices followed in a particular religion cannot be denied by the State. The Constitution poses a positive duty on the State to free many aspects of our lives from the control of religion while legitimate restrictions are accepted. The Hijab ban must pass the constitutional morality and individual dignity test as stated by the Hon’ble Supreme Court in many cases and also it must be subject to institutional discipline.